“Can He Do That?” The Constitutionality of Executive Order 13769

In this day of hot topic news and Trump triggers, few issues have garnered as much controversy and vitriolic opposition as his Executive Order 13769, affectionately known as the “Travel Ban.”

Immediately after being signed into action, news outlets swirled with as many horror stories as they could of current immigrants stuck in legal limbo in airports, mothers being separated from their children, and a host of other weapon stories. In my view, these controversies deserve attention. There seemed to be some sloppiness in the execution of the order, and some who were stopped or detained perhaps should not have been. Sure, some criminals and potential terrorists were stopped, but the issue before the United States now is as follows: Does the President of the United States have the authority to prevent people from entire countries from entering the US? And more importantly, can the President pick and choose who to let in based on nationality or religion as the order suggests? This article will focus on the constitutional issues the Order is facing in the courts now, as well as the powers designated to the branches of government pertaining to immigration.

The Constitution and Immigration

The United States Constitution included frustratingly little about immigration. The one major exception was that “The Congress shall have power to…establish an uniform rule of naturalization,”(1) meaning that Congress could decide how immigrants could enter the country and become citizens. Though it seems simple, and it is, we all know how complicated immigration has become, with multiple countries surrounding the US as well as global security threats never envisioned by the Founders. However, the Fifth Congress of 1797-99, with encouragement from President John Adams, passed the famous, and in some ways infamous, Alien and Sedition Acts.

These four acts were a response to an undeclared conflict with the French that the American Navy was facing, and fears of European spies and hostiles abounded throughout America, thus making the idea of strong immigration enforcement popular among Federalists. Three of the four acts were repealed as soon as Thomas Jefferson became president, but one, known as the Alien Enemies Act, remains part of US Code today.

The Alien Enemies Act basically says that when the United States is engaged in a declared war, or at least when aggressions are made towards the US and its government by a country, the President is authorized to order the apprehension and possible deportation of any citizen of the hostile nation who is on US soil, who is fourteen years old or older, and who has not been naturalized as a citizen of the United States.(2) You can see how this gets tricky. The language of the code makes it clear that a declared war is a justification, but what about “predatory incursions” that are even attempted as the law says? And how do you define a nation? Does it go beyond recognized countries, such as a religion? This Alien Enemies Act has come into play several times throughout US history, particularly in World War II, when Presidents Roosevelt and Truman used it to justify the Japanese internment camps as well as the deportations of thousands of German and Italian nationals on US soil.(3)

Naturally, a few lawsuits followed, including the famous Korematsu v. United States. Justice Black’s opinion on this case essentially held that the rights of citizens of hostile nations could be curtailed during times of conflict in order to minimize national security risks. This ruling, among others, such as Ludecke v. Watkins and Hirabayashi v United States, enforced Congress’ and the Executive’s powers over immigration during times of conflict. And just to be clear, these rulings have yet to be overturned, so they still could come into play. The Supreme Court has taken more of a hands-off approach to immigration law.(4) More often than not, it upholds and reemphasizes the power of Congress and the President to determine the nature of deportation and who gets let in and who does not. The Court has had a history of intervening when the constitutional rights of immigrants and alien residents are violated outside of times of conflict, such as in Yamataya v Fisher, which held that deportation cases are subject to substantive due process as required by the 5th and 14th amendments.(5) This standard of judicial review means that each deportation should, in theory, be determined case by case, and not in a blanket deportation of everyone from a specific country.

The Trump Order

So, yes, the President does indeed have strong authority in the immigration field. What makes this order interesting is that the language of the order tries to justify itself by stating that the US is in a time of conflict with terrorists, particularly from these countries. This is a tricky one. While it is common knowledge that there is a great terrorist threat in the Middle East, many question just how much the US really has been threatened since 9/11/01. This question alone throws the nature of the order into a difficult spot with the judiciary. Although there have been several attacks from radical Islamic terrorists since then, it may not be enough to justify a broad immigration ban, as temporary as it may be. Much of the legal basis for Trump’s executive action comes from a 1952 law that gives the President power to deny visas and entry to aliens who could potentially support terrorist groups or “whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.” (6) None of this should be shocking or surprising. It is common sense that the President have such powers. Cases over the years have only upheld this duty of the Executive.(7)

The Court Battles

So why have federal judges been striking it down? Many would say that it is textbook judicial activism, and while that is a fair assumption in hot-button cases like this, let’s look at the details.

The 9th Circuit’s opinion claims that the executive order falls short on two main bases, among others. First, it claims that the President alone does not have ultimate authority to ban entire groups of nationals without approval from Congress. Second, it also claims that the order does not carry enough evidence that the immigrants and refugees from these countries contain sufficient terrorist threats. The first claim may not be entirely true. As I stated before, current law gives the President broad authority to determine who may enter the country and at what times. The 9th Circuit seems to acknowledge this to a degree, but they go on to say that the President cannot discriminate based on nationality. This is where the court’s opinion prevails. A 1965 law limits the previously mentioned 1952 law by saying, “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” (8 U.S. Code § 1152).[8] Though the countries identified do contain people that could be threats to the US, the Executive Order contains language that leads to its own ruin. Section 5b of the order states:

“Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.”(9)

While most of us think that this is good considering current developments in Christian persecution in the Middle East, this goes against years of constitutional precedent. The courts are extremely careful to make sure that state-sponsored activities do not require some religious litmus test for people participating in government or who are receiving government aid. Issuing visas is technically considered government aid. The 4th Circuit Court of Appeals also recently struck down the executive order, mostly on this basis. “Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another.”(10)

From a constitutional perspective, they have a winning argument. Here’s why. In the famous case Lemon v. Kurtzman, the court established a test of sorts that serves as a guideline for judges in determining if a law violates the Establishment Clause. The test is that a law does not violate the Establishment Clause if it: 1) Has a significant secular, or non-religious, purpose, 2) Does not have the primary effect of advancing or inhibiting religion, and 3) Does not create excessive entanglement between government and religion.11

Trump’s order can easily be interpreted as violating steps two and three. It could possibly be said that this order, by allowing the Attorney General and Secretary of State to prioritize certain religions over another, advances Christianity too much and inhibits Islam too much. Sure, there are other religions, but we all know those are the main two at stake. Even if the effect of the order on both religions is small, the courts usually bind themselves to the idea promulgated by a law. Also, this order more clearly violates the third prong of the test. The entanglement comes from creating a sort of religious litmus test for immigrant visa applications. By making religion a determining factor in visa application reviews, the government has entangled itself in religion, a big no-no in constitutional law.(12) Now, many might critique the Lemon Test, and many do. However, it is current precedent and as such is the standard by which these cases are reviewed. The Fourth Circuit’s opinion on this case drew heavily from the Lemon Test in striking down this order. Questioning the efficiency and constitutionality of the Lemon Test is a topic for another time.

Now, most of these restrictions on Trump’s executive order are meant for visa-seeking immigrants. However, as the Cato Institute’s David Bier points out in a New York Times op-ed, “Note that the discrimination ban applies only to immigrants. Legally speaking, immigrants are those who are given permanent United States residency. By contrast, temporary visitors like guest workers, students and tourists, as well as refugees, could still be barred.”(13) This puts an interesting twist on the case. Since the order limits the number of refugees accepted from the identified countries, it could be that the Supreme Court rules that the refugee limits are constitutional. Nowhere in the 1952 or 1965 laws concerning immigration is there a statute that protects refugees on a large scale. Sure, there are clauses that grant amnesty for people from certain countries, but the laws textually do not cover large groups of refugees. If Trump’s order still prioritizes Christian or other minority religion refugees over Muslim refugees, which is apparently the case, he will still run into a First Amendment and possibly Fourteenth Amendment violation.

Conclusion:

So, does Trump’s travel ban fit within his constitutional power? This question has a two part answer. First, yes, the Executive does have extensive power to review immigration from certain countries and curtail it where necessary. The basic idea of this order is constitutional. However, and this is the second part, the order runs into problems in the details, such as possible religious and nationality discrimination. The execution of this order, as we all saw in big bold letters on headlines around the world, also gave the order a challenge. People being detained in airports and barred from entering the country when they already have a visa are examples of poor execution. Trump’s revised order seems to do better to end these cases, but the main points of the order are still intact. It will be interesting to see what happens at the Supreme Court. The result could possibly be a curtailing of the President’s executive power over immigration, or a more textualist opinion could say that it is constitutional, but that it has some minor legal violations that must be revised. Either way, we cannot expect this order to stay the same for very much longer.